1812. HALL'S It appeared in evidence, that on the 10th of November, 1820, the prisoner received from one Mrs. Webster, for and on account of Messrs. Hollingshead & Co., 187. in one pound notes; the prisoner immediately entered in the books of Messrs. Hollingshead & Co. as the amount received, 127. only; and he accounted to them only for 121. In the course of the same day he received for them other sums amounting to 1047. 2s. Od.; and in the evening of that day he paid to Messrs. Hollingshead & Co. the 116l. 2s. Od. It was urged on the part of the prisoner, that the money he so paid might have included every one of the notes he received from Mrs. Webster; and if so, that he could not be considered as having embezzled any of those notes. The learned JUDGE was of opinion, that although every one of those notes certainly might have been included in what he so paid, yet, that as he paid the 116l. 2s. Od., as and for the 127. received of Mrs. Webster, and the 1047. 2s. Od. received of other persons, he ought to be considered as embezzling six of Mrs. Webster's notes; and that it was not less an embezzlement thereof because he paid them over to Messrs. Hollingshead and Co., if he paid them over as and for money received from other persons. The jury, under this direction from the learned JUDGE, found the prisoner guilty; but STARKIE appearing to doubt the propriety of the learned JUDGE's direction, and some of THE JUDGES thinking the point deserved consideration, the case was stated for the opinion of THE Judges. The learned JUDGE also added to the case the following question: Suppose, instead of paying the six notes over to Messrs. Hollingshead & Co., as and for money received from other customers, he had paid it to them for a debt he owed them, would it not have been an embezzlement? In Michaelmas term, 1821, eleven of THE JUDGES (BEST J. being absent), met and considered this case. Nine of THE JUDGES, viz. RICHARDSON J., GARROW B., BURROUGH J.," HOLROYD J., BAYLEY J., GRAHAM B., RICHARds C. B., and DALLAS C. J., held the conviction right; being of opinion that from the time of making the false entry it was an embezzleWOOD B. doubted whether it could be considered as an embezzlement; ABBOTT L. C. J., thought that point should have been left to the jury, and was of opinion that the conviction was wrong. (a) 1821. HALL'S Case. REX v. JOHN REYNOLDS ALIAS JOHN DIEL. 1821. 52 G.3. c. 143. for shooting at a vessel of the customs, and also at an offi cer of the same, that to consti tute the of THE prisoner was tried and convicted before Mr. JUSTICE Indictment on HOLROYD, at the summer assizes for the county of Northumberland, in the year 1821, on an indictment founded upon the statute 52 G. 3. c. 143. s. 11. (b) charging him by different counts of the indictment, with feloniously and maliciously shooting at, and upon a vessel then being in the service of the Customs, called the Swallow, upon the high seas, and within one hundred leagues of the coast of Great Britain; and also within the same limits, felo- fence under niously and maliciously, shooting at, maiming, and dangerously the shooting this statute wounding Thomas Thompson, an officer of the customs, and de- must be maliscribing him as acting in the due execution of his duty as such custom-house officer, in such manner as to bring him within the description vessel chase a smuggler and and protection of the eleventh section of the above statute; with a fire into her like charge as to maliciously shooting at, maiming, and danger- without hoisting such a penously wounding George Easterby, aiding and assisting William dant and enPierce Stanley, an officer of the customs, when acting in the due sign as the execution of his duty, under an act for the prevention of smuggling. There were also counts charging the prisoner with aiding, &c. in committing the like offences. (a) See Rex v. Tyers, supra, 402. (b) Which enacts (among other things), That if any person shall maliciously shoot at or upon any vessel, &c. belonging to His Majesty's navy, or in the service of the customs, &c. on the high seas within one hundred leagues of the coast of Great Britain or Ireland, or if any person shall, either on shore or on the water within the limits last aforesaid, maliciously shoot at, maim, or dangerously wound any officer, &c., of the customs, &c. or any other person or persons aiding or assisting any such officer when acting in the due execution of his duty under any of the forms, &c. of any act relating to the revenues of customs, &c. of Great Britain, or of any act for the prevention of smuggling, every person so offending, and every person aiding, abetting, or assisting therein shall, being thereof convicted, be adjudged felons without benefit of clergy. cious. If a 56 G.5. st. 2. c. 104. s. 8. requires, return ing the fire will not be malicious. H H 1821. REYNOLDS'S Case. It appeared in evidence, that the prisoner who was an Englishman, was one of the English crew of a large English smuggling vessel, armed with cannon, muskets, and other offensive weapons, at the time of her engagement, on the 27th of February 1821, on the high seas, within the limits mentioned in the indictment, with a vessel called the Swallow, then in the service of the customs. In the course of that engagement it was, that the shooting at, maiming, and dangerously wounding, the above named Thomas Thompson and George Easterby (who were on board the Swallow, and part of her crew, and answered the characters and descriptions given of them in the indictment,) by the guns of the smuggling vessel took place. The conflict was attended with the following circumstances. The smuggling vessel being a vessel, liable to seizure and examination, as mentioned in the eighth section (a) of the statute 56 G. 3. s. 2. c. 104. did not bring to on being chased by the Swallow, a vessel employed in the prevention of smuggling, under the authority of the Commissioners of Customs, then having a pendant and ensign hoisted of the following description. The ensign was proved to be a red ensign, with a regal crown in a red field, and the pendant of the same description. No further or more particular evidence was given of their description, but the commander of the vessel proved that they were colours, that under his duty as an officer he had been directed to hoist. In the chase, the pendant and ensign being so hoisted, and the smuggling vessel being liable to seizure and examination as aforesaid, (a) Which enacts, That in case any ship or vessel liable to seizure or examination by this or any other act of parliament in force, shall not bring to on being required so to do, or being chased by any ship or vessel in His Majesty's navy, having the proper pendant and ensign of His Majesty's ships hoisted, or by any ship or vessel employed in the prevention of smuggling under the authority of the Lords Commissioners of the Customs or Excise, having a pendant or ensign hoisted of such description as His Majesty, by any order in council, or by his royal proclamation under the great seal of the united kingdom of Great Britain and Ireland, shall from time to time on that behalf order and direct, it shall and may be lawful for the captain, &c. having the charge or command of such ship or vessel in His Majesty's navy, or employed as aforesaid (first causing a gun to be fired as a signal), to shoot at or into such ship or vessel so liable as aforesaid, and such captain, &c. and every person acting in his aid and assistance, or by his direction, are indemnified and discharged from any penalties or actions for damages for so doing. and not bringing to, but altering her course and sailing away, the person having the charge and command of the Swallow, (first causing a gun to be fired as a signal, and the smuggling vessel still not bringing to), fired a shot at her; but it fell short of the smuggling vessel, which then fired a shot in return; and in the result, after a severe conflict, in which the prisoner as well as the above named Thomas Thompson and George Easterby, were dangerously wounded, the smuggling vessel was captured. The eighth section of the above statute of 56 G. 3. requires the pendant and ensign that are to be hoisted (in order to make it lawful to shoot at a vessel liable to seizure or examination, as aforesaid, for not bringing to, after a gun has been fired as a signal), to be of such description as His Majesty by any order in council, or by his Royal Proclamation, under the great seal of the united kingdom of Great Britain and Ireland, should from time to time, in that behalf order and direct. No proof was given at the trial of any such order in council, or royal proclamation having issued. The learned JUDGE stated (in the case submitted to THE JUDGES) that on enquiry, since the trial, he could not learn, that any such royal proclamation as the statute requires had been issued; but he found that an order of His Majesty in council was made on the 1st of February 1817, and published in the London Gazette of the 8th of February following, directing and appointing, that the pendant and ensign to be hoisted should be such as not only to answer the description above proved, but should contain also other particulars not proved. The proof therefore, of the pendant and ensign used in the present case, did not extend to all the particulars of the pendant and ensign required by the above order in council, even supposing that the Court could take judicial notice of this order in council, by the publication thereof in the Gazette, without either the proof or production of the order, or of the Gazette. The question for the opinion of THE JUDGES, arising upon the want of such evidence, was as to the legal effect of the fact of the Swallow, firing first at the smuggling vessel; whether the subsequent shooting, by the smuggling vessel at the Swallow, and her crew was a malicious shooting, so as to constitute it a capital felony, within the above statute of the 52 G. 3. Judgment was respited until the next assizes. 1821. REYNOLDS'S Case. 1821. REYNOLDS'S Case. In Michaelmas term, 1821, eleven of THE JUDGES met (BEST J., being absent), and considered this case. THE JUDGES were unanimously of opinion, that, as the custom-house vessel had not complied, with what was required by the statute to make the shooting legal, the smugglers' vessel firing in the way stated in the case, could not, in point of law, be considered as malicious. They recommended that a pardon should be applied for. 1821. REX v. JOHN WATSON. on 56 G. 3. An indictment THE prisoner was tried and convicted before Mr. JUSTICE c. 27. s. 8. (a) BAYLEY, at the summer assizes for the county of Durham, in the forth the effect year 1821, for being at large after sentence of transportation for should set and substance of the former conviction; so likewise seven years. The indictment was as follows:-" The jurors, &c. present, that at the Christmas general quarter sessions of the peace of tificate of the former conviction. The indictment or the certificate under this section of the statute, stating the former conviction to have been for felony only, is insufficient. should the cer (a) Which enacts, That if any offender who shall be transported, either for life or any number of years, shall be afterwards at large within any part of the united kingdom of Great Britain and Ireland, without some lawful cause, before the expiration of the term for which such offender shall have been transported, any such offender being at large, being thereof lawfully convicted, shall suffer death, as in cases of felony, without benefit of clergy; and such offender may be tried either before the Justices of assize, &c. for the county, &c. where he was apprehended, or from whence he was ordered to be transported, and the clerk of assize, clerk of the peace, or other officer or clerk of the court having the custody of the records where such order of transportation shall be made, shall, at the request of the prosecutor, or any other person on His Majesty's behalf, make out and give a certificate in writing signed by him, containing the effect and substance only (omitting the formal part) of every indictment and conviction of such offender, and of the order of his transportation, to the Justices of assize, &c. where such offender shall be indicted, which certificate shall be sufficient proof of the conviction and order for the transportation of such offender. |